Negligence: Defenses (Ch. 8) Flashcards Preview

Torts > Negligence: Defenses (Ch. 8) > Flashcards

Flashcards in Negligence: Defenses (Ch. 8) Deck (15):
1

Contributory Negligence

if plaintiff contributes 1% to his own injury, can’t recover. (This won’t be covered in detail on the test.)

2

Comparative Negligence

reduced by plaintiff’s contribution. This is the #1 Defense for Negligence

3

Assumption of Risk

voluntary undertaking of known danger.

4

Immunity

Absolute defense derived from the defendant's status (gov't official) or relationship to the P (spouse).

5

Accrual

Time at which a statute of limitaitons begins to run, usually at the time the P is injured

6

Discretionary Function

Act of a gov't employee requiring the use of judgment

7

Governmental Function

Tasks typically performed by a governmental entity

8

Last-Clear-Chance Doctine

Allows the P to recover in a contributory neg system despite the P's negligence
(if the D had a chance that is unavailable to the P to prevent harm that occurs and does not take advantage of it, the D will remain liable despite the P's contrib neg)

9

Proprietary Function

Function performed by the government that could just as easily be performed by a private entity

10

Statute of Limitations

Statute that limits the time period in which a claim can be filed.

11

Statute of Repose

Statue of Limitations in product liability causes that limits the time period during which a suit can be filed.

12

What defenses to Negligence result in P being barred from recovery?

Contributory Neg
Assumption of Risk (also reduced recovery)
Immunity
Statutes of Limitations or Repose

13

What defenses to Negligence result in reduced recovery for P?

Comparative Negligence
Assumption of Risk (could also bar recovery)

14

What are 3 problems related to Comparative Negligence?

-How is fault assigned, esp when multiple defendants?
-Is the last-clear-chance doctrine applicable?
-Should a neg P's recovery be reduced if the D was negligent per se?

15

Differences between Assumption of Risk and Contributory Negligence

recklessness vs adventurousness
reasonable person standard vs subjective (did P understand the risk?)
not a defense to reckless conduct vs is a defense for reckless conduct
Not generally a defense in strict liability vs Is a defense in strict liability cases.